This Oct. 15, 2000 file photo shows investigators in a speed boat examining the hull of the USS Cole at the Yemeni port of Aden, after a powerful explosion ripped a hole in the U.S Navy destroyer. DIMITRI MESSINISASSOCIATED PRESS

This Oct. 15, 2000 file photo shows investigators in a speed boat examining the hull of the USS Cole at the Yemeni port of Aden, after a powerful explosion ripped a hole in the U.S Navy destroyer. DIMITRI MESSINISASSOCIATED PRESS

Lawyers for Nashiri, 51, argued that military commissions only have authority over offenses that take place during an armed conflict. They argue his actions were not war crimes because the U.S. was not officially at war with al-Qaida at the time of the attack.

Writing for the majority, Judge Thomas Griffith rejected arguments that the appeals court should consider the challenge now because Nashiri was subject to torture while in U.S. custody. Nashiri was held for four years in secret CIA prisons after his capture in 2002.

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Authorities have disclosed that he was subjected to a mock execution and waterboarding. Nashiri says he was also hung by his hands, deprived of sleep and regularly beaten. Nashiri has been held at Guantánamo Bay since 2006.

“Nashiri’s allegations regarding his treatment during detention, while deeply troubling, do not provide any reason to fear that he will not be given a fair hearing in the military commission,” Griffith said.

Hearings resume in the case at Guantánamo’s Camp Justice next week.

In his dissent, Judge David Tatel said evidence that Nashiri was tortured while in U.S. custody warrants considering his claims now. If allegations about his treatment have merit, “the alleged burdens he faces are not only unusual, but extraordinary,” Tatel said.

Nashiri faces a possible death sentence if convicted of planning and preparing for the attack, which took place off the coast of Yemen. The government says the Cole was bombed by two al-Qaida operatives who set off explosives as they pulled their fishing boat up to the destroyer.

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About Abd al Rahim al Nashiri

Born: Jan. 5, 1965 Mecca, Saudi Arabia

Captured: October 2002 United Arab Emirates

Profession: Told a 2007 military review that he was a merchant in Mecca who by 19 was a millionaire. CIA profile released by the White House in 2006 as al Qaeda Operations Chief in Arabian Peninsula at time of his capture

Paramilitary background: CIA profile said he fought in Chechnya and Tajikistan and trained at the Khaldan camp in Afghanistan in 1992.